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A Seat at the Internet Gaming Table

Indian gaming experts say there’s no need to amend the Indian Gaming Regulatory Act in order to give the National Indian Gaming Commission a regulatory role in any Internet gaming enterprises established by tribal governments.

The 1988 Indian Gaming Regulatory Act (IGRA) established the commission as the regulator of Indian gaming along with tribal governments. Since then there have been various threats to reopen IGRA for amendments – threats that tribal leaders have vigorously opposed for fear that opening the gaming statute would provide an opportunity for anti-gaming legislators to introduce amendments to limit Indian tribal governments’ ability to conduct gaming. But with the prospect of Internet gaming on the horizon, tribal leaders are pushing for a regulatory role for the commission and some leaders and legislators have questioned whether it would be necessary to open amend IGRA in order to authorize the commission as the oversight agency.

Spokesmen for the commission and for the National Indian Gaming Association (NIGA) say authorizing the commission to provide oversight to Indian gaming in cyberspace could be written into Internet gaming legislation. “I believe that responsibility is there with the commission. I don’t see why we would have to open up IGRA in order to do that.” NIGA Chairman Ernie Stevens Jr. says. “What we’re saying is that the commission has the experience and knowledge about Indian gaming and they’re the only ones who really have that kind of experience, and we think that would be more appropriate than having an outside agency oversee it.”

The issue of opening IGRA was raised in front of the Senate Committee on Indian Affairs at an “Oversight Hearing on the Future of Internet Gaming: What’s at Stake for Tribes?” November 17 when Sen. Al Franken (D-Minn.) questioned Larry Roberts, a citizen of the Oneida Nation of Wisconsin and general consul for the National Indian Gaming Commission. “If Internet gaming were made fully legal tomorrow and your commission would have a role in regulating tribal Internet gaming, do you think the IGRA would have to be rewritten in any way in order for the commission to take on that role?” Franken asked.

Roberts said it was a hard question to answer “in the abstract, because there’s no bill out there that provides roles and responsibilities for us so it’s hard to lay out whether it would actually have to be part of IGRA or not. It really depends on how Congress defines our role.”

Franken probed further. “But, I mean, if Congress were to say, ‘Okay, the Indian side of this is going to be regulated by IGRA,’ it would have to be in the legislation, obviously, right?” Franken said, referring to the legislation to legalize Internet gaming.

“Yes,” Roberts said, “and as with any legislation we would implement our statutory duties as Congress directs us to.”

Protecting IGRA from amendments is among a set of principles tribal leaders developed over the past two years, facilitated by NIGA. The principles establish ground rules for an Internet gaming bill that would meet tribal government interests and provide an even playing field between tribal and commercial gaming. They were developed in response to current Internet gaming proposals that Indian country leaders say give unfair advantages to commercial gaming in states such as Nevada and Arizona. The principles provide for protection for tribal sovereignty; give tribes the right to operate, regulate, tax and license Internet gaming; allow tribes to reach customers off the reservation; exclude tribes from taxes; protect existing tribal-state compacts, and provide economic benefits for Indian country.

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The push to legalize Internet gaming is coming from the commercial side of the industry, primarily from the Poker Players Alliance, the American Gaming Association, and the gaming states of Nevada and New Jersey. Sen. Harry Reid (D-Nevada) tried to attach Internet gaming language to an Omnibus bill late last year, and Congressmen Joe Barton (R-Texas) and Congressman Jim McDermott (D-Wa.) have proposed H.R. 2366 and H.R. 2230, respectively. The existing proposals name the Department of Commerce and the Department of the Treasury as regulators of commercial Internet gaming.

Jason Giles, NIGA’s executive director and former general consul, argues that legislation to legalize Internet gaming could simply name the commission as the regulator of Indian Internet gaming. “You don’t need to go back into the legislation that created the Commerce and Treasury departments and amend those in order to give them a new role or responsibility,” he says.

While some tribes are eager for Internet gaming to get off the ground and others oppose all Internet gaming, tribal leaders agree—and insist—that they should have a major role in shaping any legislative proposals. Akaka strongly supports the tribal leaders’ involvement in the process. He noted that Indian gaming comprises approximately 43 percent of the entire $61 billion-plus gaming industry in the U.S. “That is why it is critical that the committee explore this issue to find out what it would mean for tribes and their traditional Indian gaming facilities,” Akaka says. “We must make sure that the unique circumstances surrounding tribal sovereignty are maintained in any legislation and we must also enable tribes to fully participate so tribes are on equal footing with their counterparts in the commercial gaming industry should any legislation be considered.”

Several legislators also support the nation’s efforts to be at the table and to protect tribal sovereignty. Sen. Daniel K. Inouye (D-Hawaii) wrote to Reid in October urging that tribes be treated fairly in any legislation the Senate majority leader might consider. “Tribes are sovereign governments and should be treated as such,” Inouye wrote. “They should have the authority to regulate, tax and operate gaming. . . When Congress enacted IGRA in 1988, we intended to authorize Indian tribes engaged in gaming to use new technologies as they developed. Accordingly, Internet gaming has become a new market and tribes should have equal access to this market.”

John Hoeven (R- N.D.) wrote to Reid on November 14 in support of Inouye’s letter. He also argued for fair treatment of the tribes. “Historically, our country has recognized the importance of allowing tribal leaders to regulate this industry in a way that will meet the goals of promoting tribal economic development, tribal self-sufficiency, and a strong tribal government as outlined in IGRA. Congress should continue to respect tribal nations and their economies by treating them fairly during any Internet gaming discussions,” Hoeven wrote.

In October, Congressman Tom Cole (D-Okla.) wrote to the co-chairs of the Joint Select Committee on Deficit Reduction—the “Super Committee” that ended it’s work November 21 without reaching consensus on deficit reductions—urging the committee not to include Internet gaming provisions in the deficit reduction package. “While I do not support Internet gaming, if an Internet gaming regime is established, anything short of a comprehensive system developed through the regular committee process threatens the constitutionally recognized sovereignty of Indian tribes,” Cole wrote.

The current bills are clearly inadequate, Stevens says. “As they rolled this out they did it without respect for several aspects that are standard for tribal governments. We have to be treated as tribal governments. They have to understand and respect that we have a responsibility to our communities as we move forward because we’re not individuals, we’re not private investors. Our tribal governments’ economic development needs are in order to service our communities.”

Akaka has promised to analyze all potential impacts of Internet gaming on tribal nations. “I know there are many other tribes and affected stakeholders that we need to hear from as well. That’s why I intend to convene additional meetings about this issue so my colleagues and I can make sure we’re hearing from all interested parties representing tribal issues in this important matter,” he says. No further hearings have been scheduled.